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Madhya Pradesh High Court · body

2000 DIGILAW 252 (MP)

Chandra Prakash Ladkani v. State Of M. P.

2000-03-08

MAITHLI SHARAN

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ORDER Maithli Sharan, J. 1. Invoking the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, the petitioner-husband Chandra Prakash Lad-kani has filed this petition against his wife, complainant (respondent No. 2) Smt. Vimla Devi Ladkani, praying for quashing proceedings as well as the charge framed against him, in Criminal Case No. 756/96 pending in the Court of Additional Chief Judicial Magistrate, Gwalior. 2. The brief facts leading to this petition may be summarised thus: The respondent No. 2, Smt. Vimla Devi, made a written complaint to the Superintendent of Police, Gwalior, and Station House Officer, Mahila Thana, Padav, Lashkar, Gwalior, on 26-4-1991 regarding subjecting her to cruelty by her husband, the petitioner Chandra Prakash Ladkani. On the basis of such a written complaint Mahila Thana, Padav, registered a case at Crime No. 22/91 under Section 498A and 406 of the Indian Penal Code against the petitioner. The period of incidents of cruelty was described between 4-12-77 to 26-4-91. The police recorded statements of the respondent No. 2, Smt. Vimla Devi and her mother Smt. Vidya Devi as well as the statements of some of the neighbours and thereafter on completion of the investigation it filed the final report in the trial Court on 11-11-95; it was mentioned that no case against the petitioner was made out. The learned trial Court gave notice to the respondent, Smt. Vimla Devi, before consideration of the final report. Her statement was recorded by the learned Magistrate on 20-2-96. Statements of other witnesses were also recorded by the learned trial Court and thereafter it took cognizance of the offence under Section 498A, I.P.C. only against the petitioner on 15-3-96; the petitioner was thereafter summoned. He appeared before the trial Court and prayed that the proceedings against him be dropped and he be discharged. The learned trial Court rejected his prayer and framed charge on 23-10-97 against him for the offence under Section 498A, I.P.C.. Being aggrieved, the petitioner preferred a Criminal Revision No. 17/98 in the Court of Session but it was dismissed on 26-11-98. Now the petitioner has moved this Court invoking its inherent jurisdiction under Section 482, Cr.P.C. 3. I have heard the learned counsel on both the sides at length and have carefully gone through the relevant documents filed by the petitioner. Now the petitioner has moved this Court invoking its inherent jurisdiction under Section 482, Cr.P.C. 3. I have heard the learned counsel on both the sides at length and have carefully gone through the relevant documents filed by the petitioner. The main thrust of the learned counsel for the petitioner is on two counts; the first argument advanced by the learned counsel is that the period of incidents of cruelty described by the respondent No. 2, Smt. Vimla Devi, swings between 4-12-77 to 26-4-91 and afterwards on 15-3-96 the cognizance of the offence under Section 498A, I.P.C. was taken by the learned Magistrate, and since after the elapse of the period of limitation of three years provided for under Section 468, Cr.P.C. cognizance was taken by the learned trial Court on 15-3-96, hence, it was an abuse of the process of the Court leading to miscarriage of justice; his second vehement argument is that admittedly, there was a litigation in respect of divorce between the petitioner Chandra Prakash and the respondent No. 2, Smt. Vimla Devi, the decree of divorce was passed by the Seventh Additional District Judge, Gwalior, in Civil Suit (Hindu Marriage Act) No. 578-A/91; appeal was filed by the respondent Smt. Vimla Devi in the High Court and the same (First Appeal No. 67 of 1994) was dismissed by this Court on 31-7-1995. Thereafter, L.P.A. No. 89/95 was filed which was also dismissed by this Court on 21-11-95. The respondent thereafter moved Hon'ble the Supreme Court by filing Special Leave Petition No. 3235/96 which was also dismissed on 9-8-96. Thus, the crux of the argument of the learned counsel for the petitioner on this count is that since the parties were no longer husband and wife as the decree of divorce was passed by the Original Court on 6-9-94, hence, the trial Court was wrong in taking cognizance of the offence under Section 498A, I.P.C. against the petitioner who was no longer the husband of the respondent Smt. Vimla Devi. On these counts the learned counsel for the petitioner has very vehemently assailed the proceedings pending in the trial Court, which, according to him, deserve to be quashed. 4. On these counts the learned counsel for the petitioner has very vehemently assailed the proceedings pending in the trial Court, which, according to him, deserve to be quashed. 4. On the other hand, admitting the factum of the decree of divorce between the parties, learned counsel for the respondent No. 2, Smt. Vimla Devi, has submitted that since the period of incidents of cruelty swinged between 4-12-77 to 26-4-91 and it happened to be the period earlier to the passing of the decree of divorce, hence, it could not be said that the cognizance taken by the learned trial Court was illegal. 5. Having given utmost consideration to the vehement arguments advanced by both the learned counsel, on the basis of my reasonings as hereinafter discussed, I am of the view that there had not been any abuse or misuse of the process of the Court, or for that matter there could not be said to have occurred any miscarriage of justice on the count that the cognizance of offence under Section 498A, I.P.C. has been taken by the learned trial Court. 6. Regarding the decree of divorce, at the outset, it is worthwhile to note that the Court of the first instance passed the decree on 6-4-94, and, evidently enough, the various incidents of subjection of the respondent to cruelty by the petitioner-husband swinged from 4-12-77 to 26-4-91. This period was such when the parties were legal spouses of each other. Thus, it could not be said that factually the incidents of cruelty had not taken place between the husband and wife. The offence described under Section 498A, I.P.C. cannot be said to have been washed off simply because at some latter date the parties got a decree of divorce. I am of the view that the petitioner and the respondent No. 2 seized to be husband and wife only from 6-9-94, the date of the decree passed by the Court of the first instance, and not before that date, and hence, by no stretch of imagination it could be said that the facts and the circumstances of the various incidents in question swinging between the two aforesaid dates would not have attracted the provisions of Section 498A, I.P.C.. Therefore, I am of the opinion that the decree of divorce, though it has been maintained at every stage upto the Hon'ble Supreme Court, cannot come to the rescue of the petitioner. 7. Regarding the second aspect of the matter concerning the period of limitation provided for under Section 468, Cr.P.C., I am of the view that no doubt period of limitation of three years under Section 468(2)(c), Cr.P.C. is provided but we cannot loose sight of the other governing provision provided under Section 473, Cr.P.C., regarding extension of the period of limitation in certain cases. For the sake of convenience this provision is reproduced below:-- "473. Extension of period of limitation in certain cases :-- Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may take cognizance of an offence after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice." 8. The non-obstante Clause with which the above provision starts, has a greater significance in the matter and it overrides the provisions of Section 468, Cr.P.C. Thus, the bar regarding taking of cognizance of the offence provided for under Section 468, Cr.P.C. is not absolute as the provisions of Section 473, Cr.P.C. cannot be lost sight of, and they do go to condone the delay, in the interest of justice. That apart, I am of the opinion that the matrimonial offence relating to cruelty of husband on wife is apparently in the nature of continuing offence to which bar of Section 468, Cr.P.C., in the interest of justice, cannot be applied. I am further of the view that in such matrimonial offences the provisions of Section 468, Cr.P.C. coupled with provisions of Section 473, Cr.P.C. should have got to be liberally construed in favour of the wife. Thus, on the point of fact, though various alleged incidents of cruelty swinged between 4-12-77 to 26-4-91 and the period of limitation for taking cognizance had expired, still it could not be said that the taking of cognizance by the Magistrate on 15-3-96 was either without jurisdiction or it was illegal and improper and had occasioned a failure of justice and for that matter some miscarriage of justice had occurred. 9. 9. In view of the aforesaid discussion, this petition is devoid of any merit and is dismissed as such.